Western Australia: Working with Children (Criminal Record Checking) Act 2004 (WA)

Western Australia Working with Children (Screening) Act 2004 Western Australia Working with Children (Screening) Act 2004 Contents Part 1 — Preliminary 1. Short title 1 2. Commencement 1 3. Principle that best interests of children are paramount 1 4. Terms used 1 5. Managerial officers of bodies corporate licensed under Child Care Service Act 2007, status of for this Act 1 6. Child‑related work 1 7. Class 1 offence and Class 2 offence 1 8. Conviction in relation to offence 1 8A. Expunged convictions to be taken to be non‑conviction charges for the purposes of this Act 1 9A. Application of certain provisions to students 1 9B. Education provider not to procure employment for certain students in child‑related employment 1 Part 2 — Assessment notices and negative notices Division 1 — Application for assessment notice 9. Application for assessment notice (child‑related employment) 1 10. Application for assessment notice (child‑related business) 1 11. Withdrawal of application for assessment notice 1 Division 2 — Issue of assessment notices and negative notices 12. Deciding applications for assessment notice 1 13A. Issue of assessment notices and negative notices 1 13. CEO to give notice of intention to issue negative notice 1 13AA. Interim negative notice 1 14. Duration of assessment notices and negative notices 1 15. Further assessment notice may be obtained 1 Division 3 — CEO may require assessment notice to be applied for 16. CEO may require certain employees to apply for assessment notice 1 17. CEO may require certain people to apply for assessment notice 1 17A. Provision of information by conduct review authority 1 17B. Action based on information received in relation to conduct review finding or outcome 1 17C. CEO may obtain further information about conduct review finding or outcome 1 18. CEO may issue negative notice if notice issued by CEO not obeyed 1 Division 4 — Cancellation of assessment notices and negative notices 19. Application for cancellation of negative notice 1 20. Cancellation of assessment notice or negative notice as result of wrong or incomplete information 1 21A. Cancellation of assessment notices of certain people not involved in child‑related work 1 21B. Cancellation of assessment notice on person's request 1 21C. Cancellation of assessment notices of certain people to whom s. 32 applies 1 21. Issue of notice cancels any previous notice 1 Division 5 — Prohibitions relating to child‑related work 22. Employers not to employ certain people in child‑related employment 1 23. People with negative notice or interim negative notice not to carry out child‑related work 1 24. People without current assessment notice not to carry out child‑related work 1 25. Defences for an offence under s. 24 1 Division 6 — Review by State Administrative Tribunal 26. Reviewable decisions 1 Part 3 — Changes in criminal record and criminal record checks Division 1 — Relevant changes in criminal record 27. Meaning of relevant change in criminal record and requirement to give notice of that change 1 28. Pending applications, applicant to notify CEO of relevant change in criminal history 1 29. People employed in child‑related employment to notify CEO of relevant change in criminal record 1 30. People carrying on child‑related business to notify CEO of relevant change in criminal record 1 31. Duties and employment of people with assessment notice who have relevant change in criminal record 1 32A. Certain applicants for assessment notice to notify proposed employer of relevant change in criminal record 1 32. CEO to treat notice of relevant change under s. 29 and 30 as application for assessment notice 1 33. Class 1 offence: pending charge or conviction prevents child‑related work 1 Division 1A — Designated changes in criminal record 33A. Commissioner may give information about change in criminal record 1 Division 2 — Criminal record checks 34. CEO may carry out criminal record check 1 Part 3A — Information gathering and sharing 34A. General power to obtain, use and disclose information 1 34B. Disclosure of information to employer or proposed employer 1 34C. Power to require reports from CEO (Justice) 1 34D. Exchange of information with corresponding authorities 1 34E. Exchange of information under National Disability Insurance Scheme (Worker Screening) Act 2020 1 34F. Disclosure of information to authorised entities 1 34G. Disclosure of information to Australian Crime Commission 1 34H. Disclosure of information relevant to protection of children or other persons 1 34I. Sharing of police information 1 Part 3B — Compliance and enforcement Division 1 — Preliminary 34J. Terms used 1 Division 2 — Authorised officers 34K. Designation of authorised officers 1 34L. Identity cards 1 Division 3 — Powers of authorised officers 34M. Entry to places 1 34N. Powers after entering place 1 34O. Directions to provide information or documents 1 34P. Additional powers for relevant records 1 34Q. Offence to contravene direction 1 34R. Exercise of power may be recorded 1 34S. Assistance and use of force to exercise power 1 34T. Procedure for seizing things 1 34U. Application of Criminal and Found Property Disposal Act 2006 1 Division 4 — Entry warrants 34V. Application for entry warrant 1 34W. Issue and content of entry warrant 1 34X. Refusal of entry warrant 1 34Y. Effect of entry warrant 1 Division 5 — Additional power to request or provide information 34Z. Additional power to request information 1 34ZA. Provision of information to justice authorities 1 Part 4 — General 35. False or misleading information 1 35A. Obstruction of authorised officer 1 35B. Impersonation of authorised officer 1 35C. Change in particulars 1 36. Assessment notice to be returned to CEO in certain cases 1 39. Use and disclosure of information obtained or created in course of official functions 1 39A. Ability to provide information and protection from liability 1 40. Protection from personal liability 1 41. Employer to comply with Act despite other laws etc. 1 43. Liability of partners for certain offences 1 43A. Protection of legal professional privilege 1 44. Evidentiary matters 1 45. Delegation by CEO etc. 1 45A. Delegation by public authority or other body 1 45B. Commencement of proceedings 1 45C. Time for commencement of prosecution 1 45D. Service of documents 1 46. Regulations 1 47. Review of Act 1 Part 6 — Transitional provisions Division 1 — Transitional provisions for this Act 56. Term used: commencement day 1 57. People carrying on a child‑related business, when s. 24(b) applies to 1 58. Volunteers continuing in child‑related employment, when s. 22(6) and 24(a) apply to 1 59. Ministers of religion etc. continuing in child‑related employment, when s. 22(6) and 24(a) apply to 1 60. Other people in child‑related employment, when s. 22(6) and 24(a) apply to 1 60A. Wilful murder charges and convictions between 1 Jan 2006 and 2 Jul 2008 taken to be relevant changes in criminal record 1 61. Transitional regulations 1 Division 2 — Transitional provisions for Working with Children (Criminal Record Checking) Amendment Act 2022 Subdivision 1 — Preliminary 62. Terms used 1 Subdivision 2 — Classification of offences 63. Pre‑commencement assessment applications 1 64. Pre‑commencement cancellation applications 1 65. Decision to act under s. 17(3)(d) 1 66. Decision to act under s. 20 1 67. Processes associated with s. 32 1 68. Proceedings before State Administrative Tribunal or court 1 69. Rights of review and appeal: related provision 1 70. Rights of review and appeal no longer apply if application made under s. 19 or 20 1 71. Application of new classification provisions 1 Subdivision 3 — Other provisions 72. Application of amended s. 12 1 73. Processes associated with interim negative notice 1 74. Application of Part 3B 1 75. Disclosure of information by CEO 1 76. Transitional regulations 1 Schedule 1 — Class 1 offences Schedule 2 — Class 2 offences Notes Compilation table 1 Uncommenced provisions table 1 Other notes 1 Defined terms Working with Children (Screening) Act 2004 An Act — * to provide for procedures for checking the criminal record of people who carry out, or propose to carry out, child‑related work; * to prohibit people who have been charged with or convicted of certain offences from carrying out child‑related work, and to provide for related matters. Part 1 — Preliminary 1. Short title This Act may be cited as the Working with Children (Screening) Act 2004. [Section 1 amended: No. 47 of 2022 s. 4.] 2. Commencement (1) This Act comes into operation on a day fixed by proclamation. (2) Different days may be fixed under subsection (1) for different provisions. 3. Principle that best interests of children are paramount In performing a function under this Act, the CEO or the State Administrative Tribunal is to regard the best interests of children as the paramount consideration. 4. Terms used In this Act, unless the contrary intention appears — another jurisdiction means a jurisdiction other than this State (including jurisdictions outside Australia); approved means approved by the CEO; assessment notice means a written notice issued by the CEO under section 12(1)(a); authorised officer means an officer designated under section 34K for the purposes of this Act or for the purposes of the provision in which the term is used; CEO means the chief executive officer of the Department; CEO (Justice) means the chief executive officer of the department of the Public Service principally assisting in the administration of the Sentence Administration Act 2003 Part 8; charge means a non‑conviction charge or a pending charge; child means a person who is under 18 years of age; child care service means — (a) an education and care service as defined in the Education and Care Services National Law (Western Australia) section 5(1); or (b) a child care service as defined in the Child Care Services Act 2007 section 4; child‑related business means child‑related work carried out by an individual for gain or reward otherwise than in the course of child‑related employment; child‑related employment means — (a) child‑related work carried out by an individual under a contract of employment or training contract (whether written or unwritten); or (b) child‑related work carried out on a voluntary basis by an individual under an agreement (whether written or unwritten) with another person; or (c) child‑related work carried out by an individual as a minister of religion or in any other capacity for the purposes of a religious organisation; or (d) child‑related work carried out by a student with another person that may or must be undertaken as part of the student's course of study; child‑related work has the meaning given to that term in section 6; Class 1 offence has the meaning given to that term in section 7(1); Class 2 offence has the meaning given to that term in section 7(2); Class 3 offence means an offence (including an offence under a law of another jurisdiction) that is not a Class 1 offence or a Class 2 offence; Commissioner means the person holding or acting in the office of Commissioner of Police under the Police Act 1892; conduct review authority means a person or body, or a person or body of a class, prescribed by the regulations for the purposes of this definition; conduct review finding or outcome means — (a) a finding of a kind prescribed by the regulations; or (b) an outcome of a kind prescribed by the regulations; contact includes — (a) any form of physical contact; and (b) any form of oral communication, whether face to face, by telephone or otherwise; and (c) any form of electronic communication, but does not include contact in the normal course of duties between an employer and an employee or between employees of the same employer; conviction has the meaning given to that term in section 8; corresponding authority means a person or body in another jurisdiction that performs functions in the operation or administration of a corresponding law that substantially correspond to the functions of the CEO under this Act; corresponding law means a law of another State or a Territory that — (a) contains provisions that substantially correspond with the provisions of this Act; and (b) is prescribed by the regulations as a corresponding law for the purposes of this Act; criminal record, in relation to a person, means — (a) every conviction of the person for an offence in this State or another jurisdiction; and (b) every charge made against the person for an offence in this State or another jurisdiction; criminal record check means the procedures set out in section 34 to enable the CEO to determine whether a person has a criminal record and, if so, to obtain details of that criminal record; criminal records agency means — (a) the Commissioner; or (b) the Commissioner of the Australian Federal Police; or (c) the Commissioner (however designated) of the police force of another jurisdiction; or (d) a person or body that is — (i) established under a law of another State, a Territory or the Commonwealth; and (ii) prescribed by the regulations for the purposes of this definition; Department means the department of the Public Service principally assisting the Minister in the administration of this Act; education provider means — (a) a university established or continued under an Act of this State, the Commonwealth, another State or a Territory; or (b) the university company as defined in the Bond University Act 1987 (Queensland) section 2; or (c) a college or other vocational and training institution as defined in the Vocational Education and Training Act 1996 section 5(1); or (d) a school specified under the Vocational Education and Training Act 1996 section 6(1); or (e) an authorised non‑university institution, a recognised Australian university or a recognised overseas university as defined in the Higher Education Act 2004 section 3; or (f) any other provider of an educational or vocational course prescribed by the regulations for the purposes of this paragraph; educational institution for children includes any school as defined in the School Education Act 1999 but does not include — (a) an educational institution that is recognised or established as a university under a written law; or (b) an educational institution prescribed by the regulations for the purposes of this paragraph, even if that university or institution has a student who has not reached 18 years of age; external government agency means — (a) a government department established, constituted or continued under a law of another jurisdiction; or (b) a body (whether incorporated or not), or the holder of an office, post or position, that — (i) is established, constituted or continued for a public purpose under a law of another jurisdiction; and (ii) under the authority of a law of another jurisdiction, performs a statutory function on behalf of the government of that jurisdiction; government agency means — (a) a department of the Public Service; or (b) a body (whether incorporated or not), or the holder of an office, post or position, that — (i) is established, constituted or continued for a public purpose under a written law; and (ii) under the authority of a written law, performs a statutory function on behalf of this State; or (c) an external government agency; interim negative notice means a written notice issued by the CEO under section 13AA(2) or (3); negative notice means a written notice issued by the CEO under section 12(1)(b); non‑conviction charge means a charge of an offence that has been disposed of by a court otherwise than by way of a conviction, and has a meaning affected by section 8A; officer of the Department means a person employed in, or engaged by, the Department whether as a public service officer under the Public Sector Management Act 1994, under a contract for services or otherwise; outcome includes — (a) the suspension, cancellation or termination of a licence, registration, authority or other form of authorisation; and (b) the making of a determination or decision, or the issuing of a notice, order or other instrument, that prohibits, restricts, regulates or controls the conduct of a particular activity, or the performance of particular work, by a person; parent, of a child, means a person — (a) who is the father, mother, stepfather or stepmother of the child; or (b) who at law has responsibility for — (i) the long‑term care, welfare and development of the child; or (ii) the day to day care, welfare and development of the child; or (c) who is in a de facto relationship with a person referred to in paragraph (a) or (b); or (d) who is specified as the child's prospective adoptive parent under the Adoption Act 1994 section 20(b); pending charge means a charge of an offence that has not yet been disposed of by a court; public authority means — (a) a department of the Public Service; or (b) a body (whether incorporated or not), or the holder of an office, post or position, that — (i) is established, constituted or continued for a public purpose under a written law; and (ii) under the authority of a written law, performs a statutory function on behalf of this State; or (c) an entity established by or under the Health Practitioner Regulation National Law (Western Australia); or (d) any other person or body, or person or body of a class, prescribed by the regulations for the purposes of this definition; relative, in relation to a child, means — (a) the child's — (i) parent, grandparent or other ancestor; (ii) sibling; (iii) uncle or aunt; (iv) cousin; (v) spouse or de facto partner, whether the relationship is established by, or traced through, consanguinity, marriage, a de facto relationship, a written law or a natural relationship; or (b) in the case of a child who is a descendant of Aboriginal people of Australia — a person regarded under the customary law or tradition of the child's community as the equivalent of a person mentioned in paragraph (a); or (c) in the case of a child who is a descendant of the indigenous inhabitants of the Torres Strait Islands — a person regarded under the customary law or tradition of the Torres Strait Islands as the equivalent of a person mentioned in paragraph (a); relevant conduct, in relation to a conduct review finding or outcome, means the conduct that gave rise to the finding or outcome; specified, in relation to a notice, means specified in the notice; student means a person who — (a) is undertaking an educational or vocational course of study with an education provider; and (b) may or must undertake child‑related work as part of that course; work includes practical training undertaken as part of an educational or vocational course; WWC purpose — (a) means a purpose that is for, or connected with, the operation or administration of, or compliance with, this Act; and (b) includes any of the following purposes — (i) verifying the identity of a person who is, or who has at any time been, an applicant for an assessment notice under this Act; (ii) considering and deciding an application for an assessment notice under this Act; (iii) making a decision under section 12 because of the operation of section 17(3)(d) or 17B(2)(b); (iv) considering and deciding an application for a negative notice to be cancelled; (v) acting under section 20; (vi) acting after the CEO has been given a notice that the CEO must treat under section 32(1) as an application for an assessment notice; (vii) ongoing monitoring of information about a person's criminal record while the CEO is proceeding as described in subparagraph (ii), (iii), (iv), (v) or (vi) in relation to the person; (viii) ongoing monitoring of information about a person's criminal record after an interim negative notice has been issued to the person; (ix) ongoing monitoring of information about a person's criminal record while the person has a current assessment notice for the purpose of determining whether the person should continue to hold the assessment notice; (x) taking any action in connection with a matter that is the subject of proceedings on an application under section 26. [Section 4 amended: No. 19 of 2007 s. 71; No. 7 of 2010 s. 4; No. 11 of 2012 s. 52; No. 20 of 2018 s. 32; No. 48 of 2020 s. 88; No. 47 of 2022 s. 5.] 5. Managerial officers of bodies corporate licensed under Child Care Service Act 2007, status of for this Act (1) In this section — managerial officer, means — (a) a managerial officer, as defined in the Child Care Services Act 2007 section 3, in relation to a body corporate that holds a licence under that Act; or (b) a person with management or control, as defined in the Education and Care Services National Law (Western Australia) section 5(1), in relation to an education and care service under that Law. (2) Despite any other provision of this Act, a person who is a managerial officer — (a) is taken for the purposes of this Act to carry on a child‑related business; and (b) if the person does not carry out any child‑related work as a managerial officer — is taken for those purposes to carry out child‑related work in connection with a child care service. [Section 5 amended: No. 19 of 2007 s. 72; No. 11 of 2012 s. 53.] 6. Child‑related work (1) Subject to this section, work is child‑related work if — (a) the usual duties of the work involve, or are likely to involve, contact with a child in connection with — (i) a child care service; or (ii) a community kindergarten registered under the School Education Act 1999 Part 5; or (iii) an educational institution for children; or (iv) a coaching or private tuition service of any kind, but not including an informal arrangement entered into for private or domestic purposes; or (v) an arrangement for the accommodation or care of children, whether in a residential facility or private residence, but not including an informal arrangement made by a parent of the child concerned or accommodation or care provided by a relative of the child; or (vi) a placement arrangement or secure care arrangement under the Children and Community Services Act 2004; or (vii) the performance by an officer, as defined in the Children and Community Services Act 2004 section 3, of a function given to the officer under that Act; or (viii) a detention centre, as defined in the Young Offenders Act 1994 section 3; or (ix) a community child health service; or (x) a counselling or other support service; or (xi) a religious organisation; or (xii) a club, association or movement (including of a cultural, recreational or sporting nature and whether incorporated or not) with a significant membership or involvement of children, but not including an informal arrangement entered into for private or domestic purposes; or (xiii) a ward of a public or private hospital in which children are ordinarily patients; or (xiv) a baby sitting or child minding service, but not including an informal arrangement entered into for private or domestic purposes; or (xv) an overnight camp, regardless of the type of accommodation or how many children are involved; or (xvi) a transport service specifically for children; or (xvii) a school crossing service, being a service provided to assist children to cross roads on their way to or from school; or (xviii) a children's entertainment or party service; or (xix) any other work of a kind prescribed by the regulations; or (b) the work is the exercise or performance by a person of a power or duty delegated to the person by the CEO under section 45. (2) For the purposes of subsection (1), contact with a child does not include contact — (a) between a person and a child who is employed by the person; or (b) between a person and a child who are both employed by the same person, if the contact is lawful and arises in the normal course of the child's employment. (3) Subsection (1) does not apply to work that is carried out on a voluntary basis by a child unless the work is carried out in circumstances, or by a child of a class of children, prescribed by the regulations. (4) Subsection (1) does not apply to work that is carried out in circumstances, or by a person of a class of persons, prescribed by the regulations. (5) Regulations made for the purposes of subsection (3) or (4) may, without limitation, prescribe a class of children or a class of persons (as the case requires) by reference to criminal record checks or other forms of screening (however described) made under another Act prescribed by the regulations. [Section 6 amended: No. 49 of 2010 s. 23; No. 47 of 2022 s. 6.] 7. Class 1 offence and Class 2 offence (1) A Class 1 offence is — (a) an offence against a provision listed in Schedule 1 (if the offence complies with any condition specified in that Schedule); or (b) an offence under a law of another jurisdiction prescribed by the regulations to be a Class 1 offence; or (c) an offence under a law of another jurisdiction the elements of which, if they had occurred in this State, would have constituted an offence of a kind referred to in this subsection; or (d) an offence committed, or alleged to have been committed, before 1 January 2006 that is an offence of a kind referred to in this subsection; or (e) an offence of attempting, or of conspiracy or incitement, to commit an offence of a kind referred to in paragraphs (a) to (d). (2) A Class 2 offence is — (a) an offence against a provision listed in Schedule 2 (if the offence complies with any condition specified in that Schedule); or (b) an offence under a law of another jurisdiction prescribed by the regulations to be a Class 2 offence; or (c) an offence under a law of another jurisdiction the elements of which, if they had occurred in this State, would have constituted an offence of a kind referred to in this subsection; or (d) an offence committed, or alleged to have been committed, before 1 January 2006 that is an offence of a kind referred to in this subsection; or (e) an offence of attempting, or of conspiracy or incitement, to commit an offence of a kind referred to in paragraphs (a) to (d). (3) For the purposes of Schedules 1 and 2, an offence falls within the ambit of this subsection if — (a) the victim of the offence is a child who has reached 14 years of age; and (b) the age difference between the victim and the offender does not exceed 5 years. [Section 7 inserted: No. 47 of 2022 s. 7.] 8. Conviction in relation to offence (1) For the purposes of this Act, a reference to a conviction in relation to an offence committed by a person is a reference to any of the following — (a) a court making a formal finding of guilt in relation to the offence; (b) a court convicting the person of the offence, if there has been no formal finding of guilt before conviction; (c) a court accepting a plea of guilty from the person in relation to the offence; (d) a court acquitting the person following a finding under The Criminal Code section 27 that the person is not guilty of the offence on account of mental impairment or an acquittal following an equivalent finding under the laws of another jurisdiction; (e) a finding under the Criminal Law (Mental Impairment) Act 2023 section 41(2)(c) or an equivalent finding under the laws of another jurisdiction. (2) For the purposes of this Act, a reference to a conviction includes a reference to a conviction that is a spent conviction. (3) For the purposes of subsection (2), an offence becomes spent if, under a law in any jurisdiction, the person concerned is permitted not to disclose the fact that the person was convicted or found guilty of the offence. (4) A reference to a conviction in this Act does not include a reference to a conviction that is subsequently quashed or set aside by a court. [Section 8 amended: No. 47 of 2022 s. 8; No. 10 of 2023 s. 406 and 412.] 8A. Expunged convictions to be taken to be non‑conviction charges for the purposes of this Act (1) For the purposes of this Act, a reference to a non‑conviction charge includes a reference to an expunged conviction, as that term is defined in the Historical Homosexual Convictions Expungement Act 2018 section 3(1). (2) Subsection (1) applies despite anything in the Historical Homosexual Convictions Expungement Act 2018. [Section 8A inserted: No. 20 of 2018 s. 33.] 9A. Application of certain provisions to students (1) This section applies in relation to a student. (2) If this section applies — (a) section 9(3)(b) does not apply and the approved form may include provision for information about the student's education provider or the person who employs, or proposes to employ, the student in child‑related employment; and (aa) section 11(3A)(a) applies as if — (i) the reference to an employer or proposed employer included a reference to the student's education provider; and (ii) the reference to employ or propose to employ the applicant in child‑related employment included a reference to the student being employed or proposed to be employed in child‑related employment as part of a course with an education provider; and (b) section 11(3) applies as if the reference to the other person were a reference to the other person or the student's education provider; and (c) sections 13A(1)(b), 13AA(4) and 20(6) apply as if — (i) the reference to child‑related employment by another person were a reference to employment by another person as part of a course with an education provider; and (ii) the reference to the other person were a reference to the other person or the student's education provider; and (d) section 16 applies as if section 16(1) were deleted and the following subsection were inserted: (1) If a person or a student's education provider (the employer) who employs a student or procures employment for the student (the employee) in child‑related employment — (a) reasonably suspects that the employee has been charged with or convicted of an offence; and (b) reasonably believes that the charge or conviction makes it inappropriate for the employee to continue to carry out child‑related work, the employer may give written notice to the CEO of the suspicion and belief and the grounds on which the suspicion and belief are held. and (e) section 18(2) applies in relation to a student employed in child‑related employment as part of a course conducted by an education provider as if — (i) the reference to the person's employer were a reference to the person's employer or education provider; and (ii) the reference to the employer were a reference to the employer or the person's education provider; and (f) section 29(1) applies to a student employed in child‑related employment as part of a course conducted by an education provider so that the student is under an obligation to give the student's education provider written notice of a relevant change in the student's criminal record as soon as is practicable after the change occurs; and (g) section 29(2) applies in relation to a notice received by the CEO from a student employed in child‑related employment as part of a course conducted by an education provider so that the CEO may advise the student's education provider of the relevant change in the student's criminal record disclosed in the notice; and (h) section 31(3) applies to a student offered child‑related employment as part of a course conducted by an education provider so that the student is under an obligation to give the CEO and the student's education provider written notice of the things referred to in paragraphs (a) and (b) of that subsection; and (i) section 34B(1) applies as if — (i) a reference to an employer or proposed employer included a reference to the student's education provider; and (ii) a reference to employ or propose to employ a person in child‑related employment included a reference to the student being employed or proposed to be employed in child‑related employment as part of a course with an education provider. [Section 9A inserted: No. 7 of 2010 s. 5; amended: No. 47 of 2022 s. 9.] 9B. Education provider not to procure employment for certain students in child‑related employment (1) An education provider must not, for the purpose of enabling a student to complete the syllabus for a course conducted by the provider, procure employment for the student in child‑related employment if — (a) the education provider — (i) is aware of a Class 1 offence or a Class 2 offence of which the student has been convicted; or (ii) is aware that the student has a pending charge in respect of a Class 1 offence or a Class 2 offence; and (b) the student does not have a current assessment notice and has not made an application for an assessment notice that is pending. Penalty for this subsection: a fine of $60 000. (2) An education provider must not, for the purpose of enabling a student to complete the syllabus for a course conducted by the provider, procure employment for the student in child‑related employment if the education provider is aware that a negative notice or an interim negative notice has been issued to the student and is current. Penalty for this subsection: a fine of $60 000. (3) An education provider must not, for the purpose of enabling a student to complete the syllabus for a course conducted by the provider, procure child‑related employment for the student in connection with a child care service if the student does not have a current assessment notice and has not made an application for an assessment notice that is pending. Penalty for this subsection: a fine of $12 000. (4) An education provider must not, for the purpose of enabling a student to complete the syllabus for a course conducted by the provider, procure child‑related employment for the student if the education provider is aware that the student has withdrawn an application for an assessment notice. Penalty for this subsection: a fine of $12 000. (5) An education provider must not, for the purpose of enabling a student to complete the syllabus for a course conducted by the provider, procure child‑related employment for the student with a person (an employer) if — (a) the student has previously been employed by the employer in child‑related employment for the purpose of enabling the student to complete the syllabus for that course for more than 5 days in a calendar year; and (b) the student does not have a current assessment notice and has not made an application for an assessment notice that is pending. Penalty for this subsection: a fine of $12 000. (6) Subsection (5) does not apply in relation to the procurement of child‑related employment for a student if subsection (1), (2), (3) or (4) applies in relation to that procurement of employment. (7) A person charged with an offence under this section may be convicted of another offence under this section if that offence is established by the evidence. [Section 9B inserted: No. 7 of 2010 s. 5; amended: No. 47 of 2022 s. 46.] Part 2 — Assessment notices and negative notices Division 1 — Application for assessment notice 9. Application for assessment notice (child‑related employment) (1) A person who is, or is proposed to be, employed in child‑related employment by another person may apply to the CEO for an assessment notice. (2) The application is to be — (a) in the approved form; and (b) signed by the applicant; and (c) accompanied by the fee prescribed by the regulations. (3) The approved form must include provision for — (a) identifying information to be given about the applicant; and (b) information about the person who employs, or proposes to employ, the applicant in child‑related employment. (3A) The approved form may require the provision of any other information the CEO thinks fit. (4) On receiving the application, the CEO may ask the applicant, by written notice or otherwise, to provide any further information or documents that the CEO reasonably needs to establish the applicant's identity or for a proper consideration of the application. (5) The regulations may prescribe other requirements that apply in relation to an application or the consideration of an application. [Section 9 amended: No. 47 of 2022 s. 10.] 10. Application for assessment notice (child‑related business) (1) A person who carries on, or proposes to carry on, a child‑related business may apply to the CEO for an assessment notice. (2) The application is to be — (a) in the approved form; and (b) signed by the applicant; and (c) accompanied by the fee prescribed by the regulations. (3) The approved form is to include provision for identifying information to be given about the applicant. (3A) The approved form may require the provision of any other information the CEO thinks fit. (4) On receiving the application, the CEO may ask the applicant, by written notice or otherwise, to provide any further information or documents that the CEO reasonably needs to establish the applicant's identity or for a proper consideration of the application. (5) The regulations may prescribe other requirements that apply in relation to an application or the consideration of an application. [Section 10 amended: No. 47 of 2022 s. 11.] 11. Withdrawal of application for assessment notice (1) An applicant for an assessment notice may withdraw the application at any time before the assessment notice is issued to the applicant. (2A) Subsection (1) does not apply if the CEO has issued an interim negative notice to the applicant that is current. (2) The applicant is taken to have withdrawn the application if — (a) the CEO cannot establish with certainty the applicant's identity, that the applicant is, or proposes to be, employed in child‑related employment by another person or that the applicant carries on, or proposes to carry on, a child‑related business (as the case may be); and (b) the CEO gives the applicant a written notice — (i) that asks the applicant to provide, within a reasonable specified time, specified information or documents that the CEO reasonably needs to establish any matter referred to in paragraph (a) that is relevant to the application; and (ii) that informs the applicant that, if the applicant does not comply with the request, the applicant's application will be taken to have been withdrawn; and (c) the applicant does not comply with the notice within the specified time; and (d) the CEO gives the applicant a written notice stating that the applicant is taken to have withdrawn the application. (3A) In addition, the applicant is taken to have withdrawn the application if — (a) an employer or proposed employer identified by the applicant for the purposes of the application fails, within a period determined by the CEO to be reasonable in the circumstances, to verify that they employ or propose to employ the applicant in child‑related employment; and (b) the CEO gives the applicant a written notice that informs the applicant that if a verification of the kind referred to in paragraph (a) is not provided to the CEO within a reasonable specified period then the applicant's application will be taken to have been withdrawn; and (c) the verification is not provided to the CEO within the specified period under paragraph (b); and (d) the CEO gives the applicant a written notice stating that the applicant is taken to have withdrawn the application. (3) If — (a) the applicant is a person who is, or is proposed to be, employed in child‑related employment by another person; and (b) the applicant withdraws the application or the CEO gives the applicant a notice under subsection (2)(d) or (3A)(d), the CEO is to give the other person a written notice stating that the applicant has withdrawn, or is taken to have withdrawn, the application, as the case requires. (4) This section does not apply to an application taken to be made under section 9 or 10 in accordance with section 17(3)(d)(i) or 17B(2)(b)(i). [Section 11 amended: No. 7 of 2010 s. 6; No. 47 of 2022 s. 12.] Division 2 — Issue of assessment notices and negative notices 12. Deciding applications for assessment notice (1) The CEO is to decide an application under section 9 or 10 in accordance with this section — (a) by issuing an assessment notice to the applicant; or (b) by issuing a negative notice to the applicant. (2) The CEO must not decide the application unless the CEO has — (a) made a criminal record check in respect of the applicant; and (b) checked whether notice of a conduct review finding or outcome has been received under section 17A(3) in respect of the applicant. (3) If one or more conditions specified in the Table apply in relation to an applicant, the CEO is to decide the application in accordance with — (a) if any one condition applies, the applicable provision opposite that condition; or (b) if more than one condition applies, the applicable provision opposite the condition that has the higher or highest item number in the Table. Table Item Condition Applicable provision The CEO is not aware of — 1. (a) any offence of which the applicant has been convicted; or (b) any charge of an offence against the applicant; or (c) any conduct review finding or outcome. s. 12(4) 2. The CEO is aware that the applicant has a non‑conviction charge in respect of a Class 3 offence. s. 12(4) 2A. The CEO is aware that the applicant is, or has been, the subject of a conduct review finding or outcome other than as a result of a notice under section 17A(3). s. 12(4) The CEO is aware of a pending charge against the applicant in respect of a Class 3 offence, other than as a result of — 3. (a) a notice under section 16(1) or 17(1); or s. 12(4) (b) designated information as defined in section 17(1A). 3A. The CEO is aware that the applicant is, or has been, the subject of a conduct review finding or outcome as a result of a notice under section 17A(3). s. 12(5) The CEO is aware of a pending charge against the applicant in respect of a Class 3 offence as a result of — 4. (a) a notice under section 16(1) or 17(1); or s. 12(5) (b) designated information as defined in section 17(1A). 5. The CEO is aware of a Class 3 offence of which the applicant has been convicted. s. 12(5) 6. The CEO is aware that the applicant has a non‑conviction charge in respect of a Class 1 offence or a Class 2 offence. s. 12(5) The CEO — 7. (a) is aware of a Class 3 offence of which the applicant has been convicted; and (b) reasonably believes that in the course of committing the offence the applicant performed an indecent act. s. 12(6) 8. The CEO is aware of a pending charge against the applicant in respect of a Class 2 offence. s. 12(6) 9. The CEO is aware of a Class 2 offence of which the applicant has been convicted. s. 12(6) 9A. The CEO is aware of a pending charge against the applicant in respect of a Class 1 offence that was allegedly committed by the applicant when a child. s. 12(6) 10. The CEO is aware of a Class 1 offence (committed by the applicant when a child) of which the applicant has been convicted. s. 12(6) The CEO is aware — 10A. (a) of a Class 1 offence (that was not committed by the applicant when a child) of which the applicant has been convicted; and s. 12(6) (b) that the applicant has been granted a pardon in respect of that offence. 10B. The CEO is aware of a pending charge against the applicant in respect of a Class 1 offence that was not allegedly committed by the applicant when a child. s. 12(7) 11. The CEO is aware of a Class 1 offence (that was not committed by the applicant when a child) of which the applicant has been convicted, other than where the applicant has been granted a pardon in respect of that offence. s. 12(7) (4) If this subsection applies, the CEO is to issue an assessment notice to the applicant. (5) If this subsection applies, the CEO is to issue an assessment notice to the applicant unless the CEO is satisfied that, because of the particular circumstances of the case, a negative notice should be issued to the applicant. (6) If this subsection applies, the CEO is to issue a negative notice to the applicant unless the CEO is satisfied that, because of the exceptional circumstances of the case, an assessment notice should be issued to the applicant. (7) If this subsection applies, the CEO is to issue a negative notice to the applicant. (8) If subsection (5) or (6) applies in respect of an offence or a conduct review finding or outcome, the CEO must decide whether the CEO is satisfied in relation to the particular or exceptional circumstances of the case, having regard to — (a) the best interests of children; and (b) when the offence was committed or is alleged to have been committed or the relevant conduct occurred or is alleged to have occurred; and (c) the age of the applicant when the offence was committed or is alleged to have been committed or the relevant conduct occurred or is alleged to have occurred; and (d) the nature of the offence or relevant conduct and any relevance it has to child‑related work; and (e) the effect of future conduct by the applicant in relation to a child if that future conduct were the same or similar to conduct the subject of — (i) any offence committed by the applicant; or (ii) any charge against the applicant; or (iii) any conduct review finding or outcome in relation to the applicant; and (f) any information given by the applicant in, or in relation to, the application; and (g) anything else that the CEO reasonably considers relevant to the decision. [Section 12 inserted: No. 7 of 2010 s. 7; amended: No. 47 of 2022 s. 13.] 13A. Issue of assessment notices and negative notices (1) On deciding the application — (a) the CEO is to issue the assessment notice or the negative notice, as the case requires, to the applicant; and (b) if the CEO is aware that the applicant is, or is proposed to be, employed in child‑related employment by another person, the CEO must — (i) if an assessment notice is issued — give details contained in the assessment notice to the other person in the manner or form the CEO thinks fit (including by giving a copy of the assessment notice to the other person); and (ii) if a negative notice is issued — give a copy of the negative notice to the other person. (2) When a negative notice is issued to an applicant, the CEO is to provide with it a written notice that — (a) states the reasons for the CEO's decision on the application; and (b) states that the applicant may, subject to section 26(3A), apply to the State Administrative Tribunal, within 28 days after the date of the negative notice, to have the decision reviewed; and (c) explains how the application for the review is made. [Section 13A inserted: No. 7 of 2010 s. 7; amended: No. 47 of 2022 s. 14.] 13. CEO to give notice of intention to issue negative notice (1) If the CEO proposes or is required to decide an application under section 12 by issuing a negative notice to the applicant, the CEO must give the applicant a written notice that — (a) informs the applicant of the proposal or requirement; and (b) states the information about — (i) the applicant's criminal record of which the CEO is aware; and (ii) any conduct review finding or outcome relating to the applicant of which the CEO is aware as a result of a notice under section 17A(3); and (c) invites the applicant to make a submission to the CEO, in writing or in another form approved by the CEO, within a specified time about the information and about the applicant's suitability to be issued with an assessment notice. (2) If the information stated in a notice under subsection (1) about an applicant's criminal record includes a Class 1 offence (other than a Class 1 offence committed or allegedly committed by the applicant when a child) of which the applicant has been convicted, or for which the applicant has a pending charge, the applicant may make a submission to the CEO under this section only if the applicant reasonably believes that the applicant's criminal record does not include that conviction or charge. (3) The specified time referred to in subsection (1)(c) must be reasonable and, in any case, at least 28 days after the CEO gives the applicant the notice. (4) Subsection (2) does not apply if the applicant has been granted a pardon in respect of the Class 1 offence. (5) Before deciding the application, the CEO must consider any submission made by the applicant within the specified time. [Section 13 inserted: No. 47 of 2022 s. 15.] 13AA. Interim negative notice (1) Subsections (2) and (3) apply in relation to a person if the CEO — (a) has received an application for an assessment notice made by the person and the application is pending; or (b) has decided to act under section 17(3)(d) or 17B(2)(b) in respect of the person; or (c) is acting under section 20 in respect of the person if the correct notice that would be substituted is a negative notice; or (d) is given a notice that the CEO must treat under section 32(1) as an application by the person for an assessment notice. (2) The CEO may issue an interim negative notice to the person if the CEO is of the opinion that there is a reasonable likelihood that the circumstances will result in a negative notice being issued to the person. (3) The CEO must issue an interim negative notice to the person if the CEO is aware that the person — (a) has been convicted of a Class 1 offence (other than a Class 1 offence committed by the person when a child or in respect of which the person has been granted a pardon); or (b) has a pending charge in respect of a Class 1 offence (other than a Class 1 offence allegedly committed by the person when a child). (4) If the CEO is aware that the person to whom an interim negative notice is issued is employed, or is proposed to be employed, in child‑related employment by another person, the CEO must give a copy of the interim negative notice to the other person. (5) An interim negative notice ceases to have effect when an assessment notice or negative notice is issued to the person. [Section 13AA inserted: No. 47 of 2022 s. 15.] 14. Duration of assessment notices and negative notices (1) An assessment notice has effect for 3 years unless sooner cancelled under this Act. (2) A negative notice continues to have effect unless it is cancelled under this Act. 15. Further assessment notice may be obtained (1) If an assessment notice no longer has effect, or will expire within a period of 3 months, the person to whom it was issued may apply under Division 1 for a further assessment notice. (2) Section 12 applies to the application as if a reference in that section to issuing an assessment notice were a reference to issuing an assessment notice or a further assessment notice. Division 3 — CEO may require assessment notice to be applied for 16. CEO may require certain employees to apply for assessment notice (1) If a person (the employer) who employs another person (the employee) in child‑related employment — (a) reasonably suspects that the employee has been charged with or convicted of an offence; and (b) reasonably believes that the charge or conviction makes it inappropriate for the employee to continue to carry out child‑related work, the employer may give written notice to the CEO of the suspicion and belief and the grounds on which the suspicion and belief are held. (2) The CEO may ask the employer, by written notice or otherwise, to provide further information in relation to those grounds. (3) If the CEO is satisfied that the employer has reasonable grounds for holding the suspicion and belief referred to in subsection (1), the CEO may give the employee a written notice requiring the employee to apply, within 10 days after the date of the notice, for an assessment notice. (4) Subsection (3) applies to a person whether or not the person has a current assessment notice. (5) The employee must comply with a notice given to the employee under subsection (3) within the period referred to in that subsection. Penalty for this subsection: a fine of $1 000. (6) It is a defence to a charge of an offence under subsection (5) to prove that, at the time the offence is alleged to have been committed, the person was not employed in child‑related employment. [Section 16 amended: No. 47 of 2022 s. 46.] 17. CEO may require certain people to apply for assessment notice (1A) In this section — designated authority means — (a) the Commissioner; or (b) a department of the Public Service; or (c) a body (whether incorporated or not), or the holder of an office, post or position, that — (i) is established, constituted or continued for a public purpose under a written law; and (ii) under the authority of a written law, performs a statutory function on behalf of this State; or (d) any other person or body, or person or body of a class, prescribed by the regulations for the purposes of this definition; designated information means information given to the CEO by — (a) the Commissioner of the Australian Federal Police; or (b) the Commissioner (however designated) of the police force of another jurisdiction; or (c) any other person or body, or person or body of a class, prescribed by the regulations for the purposes of this definition. (1) If a designated authority reasonably believes that a person charged with or convicted of an offence — (a) is a person in respect of whom the CEO may ask for information under section 34; or (b) carries out child‑related work, and the designated authority reasonably believes that the charge or conviction makes it inappropriate for the person to continue to carry out child‑related work or have an assessment notice, the designated authority may give the CEO notice of the following — (c) the person's name and any former name or alias; (d) the person's date of birth; (da) the person's address and other contact details; (e) the offence with which the person has been charged or of which the person has been convicted; (f) the details of the offence; (fa) without limiting paragraph (f), whether a victim of the offence was a child at the time when the offence was committed or allegedly committed and, if so, the age of the victim at that time; (g) the date of the charge or conviction; (h) any other information the designated authority thinks fit. (2) A designated authority may give notice under subsection (1) despite another Act or law. (3) If the CEO is satisfied that there are reasonable grounds for believing that a person in respect of whom the CEO has been given notice under subsection (1), information under section 33A or 34 or designated information — (a) carries out child‑related work or has a current assessment notice; and (b) has been charged with or convicted of an offence that may make it inappropriate for the person to continue to carry out child‑related work or have an assessment notice, the CEO may — (c) if the person does not have a current assessment notice, give the person a written notice requiring the person to apply, within 10 days after the date of the notice, for an assessment notice; or (d) if the person has a current assessment notice, make a decision under section 12 as if — (i) an application had been made by the person under section 9 or 10, as the case requires; and (ii) a reference in section 12 to issuing an assessment notice were a reference to issuing an assessment notice or a further assessment notice. (3A) However, the CEO must not act under subsection (3) in relation to information about a charge or conviction if the CEO — (a) was previously aware of the charge or conviction; and (b) decided to issue an assessment notice under section 12(5) or (6) despite the existence of the charge or conviction. (4) A person must comply with a notice given to the person under subsection (3)(c) within the period referred to in that paragraph. Penalty for this subsection: a fine of $1 000. (5) It is a defence to a charge of an offence under subsection (4) to prove that, at the time the offence is alleged to have been committed, the person was not carrying out child‑related work. [Section 17 inserted: No. 7 of 2010 s. 9; amended: No. 47 of 2022 s. 16 and 46.] 17A. Provision of information by conduct review authority (1) In this section — designated conduct review authority, for a conduct review finding or outcome, means the conduct review authority prescribed by the regulations as the designated conduct review authority in relation to conduct review findings or outcomes of that kind. (2) This section applies if — (a) a person is, or has been, the subject of a conduct review finding or outcome; and (b) the conduct review authority that is the designated conduct review authority for that conduct review finding or outcome knows or reasonably believes that the finding or outcome is relevant to the performance of a function of the CEO under this Act. (3) The conduct review authority may give the CEO notice of the following — (a) the person's name and any former name or alias; (b) the person's date of birth; (c) the person's address and other contact details; (d) the conduct review finding or outcome; (e) details of the relevant conduct; (f) details of any person who employs the person in child‑related employment, or of any child‑related business carried on by the person (to the extent that these details are known to the conduct review authority); (g) any other information of a kind prescribed by the regulations. (4) If a conduct review authority gives a notice to the CEO under subsection (3) and the conduct review finding or outcome to which the notice relates is subsequently quashed, set aside or withdrawn expressly or impliedly, or found to be unsubstantiated or incorrect, the conduct review authority must give the CEO notice of this change in circumstances. (5) A conduct review authority may give a notice under subsection (3) or (4) despite another Act or law. (6) On receiving a notice from a conduct review authority under subsection (3) or (4), the CEO may request the conduct review authority to provide any further information to the CEO that the CEO reasonably requires for the purposes of this section. (7) A conduct review authority to which a request is made under subsection (6) is authorised to disclose the information to the CEO. (8) The information given by a conduct review authority under this section may include information about, or relating to, a finding or outcome that was made before — (a) the finding or outcome became a conduct review finding or outcome under this Act; or (b) the conduct review authority became the designated conduct review authority for the finding or outcome under this Act. (9) This section does not limit the powers of the CEO to request or obtain information under another provision of this Act. [Section 17A inserted: No. 47 of 2022 s. 17.] 17B. Action based on information received in relation to conduct review finding or outcome (1) The CEO may, on the basis of a notice given under section 17A, take action under subsection (2) if the CEO is satisfied that there are reasonable grounds for believing that the person to whom the notice relates — (a) carries out child‑related work or has a current assessment notice; and (b) is, or has been, the subject of a conduct review finding or outcome that may make it inappropriate for the person to continue to carry out child‑related work or have an assessment notice. (2) The CEO may — (a) if the person does not have a current assessment notice, give the person a written notice requiring the person to apply, within 10 days after the date of the notice, for an assessment notice; or (b) if the person has a current assessment notice, make a decision under section 12 as if — (i) an application had been made by the person under section 9 or 10, as the case requires; and (ii) a reference in section 12 to issuing an assessment notice were a reference to issuing an assessment notice or a further assessment notice. (3) A person must comply with a notice given to the person under subsection (2)(a) within the period referred to in that paragraph. Penalty for this subsection: a fine of $1 000. (4) It is a defence to a charge of an offence under subsection (3) to prove that, at the time the offence is alleged to have been committed, the person was not carrying out child‑related work. [Section 17B inserted: No. 47 of 2022 s. 17.] 17C. CEO may obtain further information about conduct review finding or outcome (1) In this section — related authority, in relation to a conduct review finding or outcome, means a person or body (other than a conduct review authority) — (a) that made a finding, determination or decision that resulted in, led to or comprised the conduct review finding or outcome; or (b) that — (i) has been involved in any step or process connected with, or otherwise related to, the conduct review finding or outcome; and (ii) is a person or body, or person or body of a class, prescribed by the regulations for the purposes of this paragraph. (2) This section applies in respect of a person — (a) who has a current assessment notice; or (b) who has applied to the CEO for an assessment notice; or (c) who has applied to the CEO for a negative notice to be cancelled; or (d) in relation to whom the CEO has decided to act under section 17(3)(d) or 17B(2)(b); or (e) in relation to whom the CEO is acting under section 20; or (f) who has applied to the State Administrative Tribunal under section 26 or who is the subject of an appeal against a decision of the Tribunal on an application under that section; or (g) in relation to whom the CEO has been given a notice that the CEO must treat under section 32(1) as an application by the person for an assessment notice. (3) If the person is, or has been, the subject of a notice given under section 17A in respect of a conduct review finding or outcome, the CEO may request the conduct review authority that gave the notice or a related authority for any information relating to the person in its possession that is connected with, or otherwise related to, the conduct review finding